The Netherlands has taken a step towards potentially replacing the UK as one of the three main signatories to the unitary patent and Unified Patent Court agreement as it moves toward full ratification.
A notice published on the website of the Dutch Senate’s First Chamber (Eerste Kamer) on 6 September confirms that the government supports the introduction of a unitary patent and concurrent UPC.
For the ratification to fully come into effect it must deposit its instrument of ratification with the European Council.
Before the unitary patent and UPC can come into force 13 countries will have to ratify the agreement.
Of those 13, France, Germany and the UK, which had the highest number of European patents in effect when the agreement was finalised in 2012, are mandatory.
However, speculation about the UK’s involvement in the scheme has been rife since the UK voted to leave the EU on June 23. Both the Netherlands and Italy have been touted as potential successors to the UK should it pull out of the system.
As it stands, a central division of the UPC, which is required in each of the mandatory ratifying countries, is due to be housed in the City’s Aldgate Tower (pictured).
Wouter Pors, partner at international law firm Bird & Bird’s The Hague office, told the Gazette it would be ‘premature to discuss relocation of the London seat’ but that the Netherlands has always been happy to host a division.
Alan Johnson, partner at law firm Bristows in London, added that Italy has also signalled its willingness to host a central division of the court in Milan.
‘Since 23 June, first Italy and now the Netherlands have progressed their national ratification processes,’ Johnson said.
He added: ‘In order for the UPC to start without the UK, a re-negotiation of the UPC Agreement would be required to re-allocate the London share of the central division, and this is not a straightforward matter, with claims likely from at least Munich, Paris and Milan.
'In all probability what we are seeing at present is those close to the process realising that if momentum toward this project is lost, it may be delayed for a very long time.’
Johnson said sources close to the UPC negotiations were at odds with each other with some wanting the UK to ratify the agreement so that modifications can be made to ensure it remains part of the system despite Brexit while others have suggested that if the UK does not ratify then the other countries will ‘go it alone’.
The UK Intellectual Property Office declined to comment on the Dutch legislation but previously said that there will be no major changes to the UPC agreement and that the UK remains a contracting member state and will continue to attend and participate in meetings.